CASE ANALYSIS

Olga Tellis and Ors. Vs. Bombay Municipal Corporation and Ors.

SUBMITTED BY: SUBMITTED TO:

SHIVANI CHATURVEDI MS. AAKANKSHA KUMAR

BA LLB FACULTY OF CG-1

SEMESTER-1

TOTAL WORD COUNT-2716

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SEMESTER

(JULY-NOVEMBER 2014)

1
 TABLE OF CONTENTS

ACKNOWLEDGEMENT ............................................................................................................ 3
RESEARCH METHODOLOGY ................................................................................................ 4
SCOPE OF THE PROJECT ....................................................................................................... 5
INTRODUCTION......................................................................................................................... 6
FACTUAL SCENARIO ............................................................................................................... 7
DISPUTE ....................................................................................................................................... 9
ISSUES THAT WERE TO BE DECIDED BY THE COURT ............................................... 10
DECISION OF THE SUPREME COURT ............................................................................... 11
ANALYSIS OF THE JUDGEMENT DELIVERED BY THE SUPREME COURT ........... 13
CONCLUSION ......................................................................................................................... 133
BIBLIOGRAPHY ....................................................................................................................... 14

2
 ACKNOWLEDGEMENT

I take this opportunity to express my deepest gratitude to many people. without their help and
support completion of this project would have become a difficult task for me.

I welcome this opportunity to express my sincere gratitude to my teacher and guide, Ms.
Aakanksha Kumar, Faculty of CG-I, who has been a constant source of encouragement and
guidance throughout the course of this work.

I am grateful to the IT Staff for providing all necessary facilities for carrying out this work.
Thanks are also due to all members of the Library staff for their help and assistance at all times.

I express my deepest gratitude to my parents Ms. Seema Chaturvedi and Mr.Vikas Chaturvedi,
who have been the real driving force for this work.

I am also grateful to my friends and classmates for their constant support to help complete this
project.

Shivani Chaturvedi

3
 RESEARCH METHODOLOGY

SUBJECT: CONSTITUTIONAL GOVERNANCE-I

Topic: Case Analysis-Olga Tellis and Ors. Vs. Bombay Municipal Corporation and Ors.

The major part of this project has been researched from websites from All India Reporter Journal
where the case is available in its original form. Help from various articles and reports which are
available on various web databases have also been referred to.

4
 SCOPE OF THE PROJECT

The project is a case analysis. This case has been a landmark judgment given by the Honorable
Supreme Court of India. The project aims to study how the Supreme Court included right to
livelihood within the ambit of right to life when previously it had been continuously reiterating
that right to livelihood is not a part of right to life.

5
 INTRODUCTION

Before we go on to look at the factual scenario of the case let us first study the articles of the
Constitution of India that were in issue here in this case Olga Tellis vs. Bombay Municipal
Corporation.

Here the articles which were in issue are article 21 Right To Life and article 19 Right to Freedom

The case Olga Tellis and Ors vs. Bombay Municipal Corporation of India is a landmark case in
which the Supreme Court of India interpreted that Right to Livelihood comes under the ambit of
Right to Life Article 21.

Therefore let us first understand what Right to life is- Article 21 assures every person right to life
and personal liberty. The term life has been given a very expansive meaning. The term ‘personal
liberty’ covers a variety of rights which go on to constitute personal liberty of a citizen. Its
deprivation shall only be as per the relevant procedure prescribed in the relevant law, but the
procedure has to be just and fair.

RIGHT TO LIVELIHOOD AS A PART OF RIGHT TO LIFE

The Supreme Court of India took the view that right to life in Article 21 would not include right
to livelihood. In re Sant Ram Supreme Court ruled that right to life would not include right to
livelihood. The right to livelihood can only be included in Article 19 and Article 16 of the
Constitution of India and that too in a very limited sense. The Supreme Court reiterated this
proposition in several cases also. But then, the view of the court underwent a change. With the
defining of the word ‘life’ in Article 21 in a broad and expansive manner, the Court came to hold
that the right to life includes right to livelihood. This decision was made by the court in Olga
Tellis vs. Bombay Municipal Corporation.1

1
MP JAIN, INDIAN CONSTITUTIONAL LAW 1161 (2014)

6
 FACTUAL SCENARIO

The empirical data compiled by the agencies, official and non official revealed that the pavement
and slum dwellers chose a pavement or a slum in the vicinity of their place of work and for them,
to lose of pavement or slum is to lose the job. They manage to find a habitat in places which are
mostly filthy or marshy out of sheer helplessness.

The dispute arose when on July 13,1981 the then Chief Minister of Maharashtra , Shri A.R.
Antulay, made an announcement which was given wide publicity by the newspapers that all the
pavement dwellers in the city of Bombay will be evicted forcibly and deported to their respective
places of origin or removed to places outside the city of Bombay. The Chief Minister directed
Bombay Municipal Corporation to demolish the pavement dwellings and deport the pavement
dwellers. The apparent justification which the Chief Minister gave to his announcement was:”It
is a very inhuman existence. These structures are flimsy and open to the elements. During the
monsoon there is no way these people can live comfortably.

Section 312(1) 313(1)a and 314 of Bombay Municipal Corporation Act of 1888 empower the
Municipal Commissioner to cause to be removed encroachments on footpaths or pavements over
which the public have a right of passage or access. But the procedure prescribed by S.314 of
Bombay Municipal Corporation Act confers on the commissioner the discretion to cause an
encroachment to be removed with or without notice. The discretion has to be exercised in a
reasonable manner so as to comply with the constitutional mandate that the procedure
accompanying the performance of a public act must be fair and reasonable. Pursuant to that
decision, pavement dwellings of some of the people were in fact demolished.2

The petition was filed by some of the slum dwellers, pavement dwellers and some socially
conscientious journalists. One of the petitioners a pavement dweller P. Angamathu migrated
from Salem Tamil Nadu, to Bombay in search of employment. On July 23 1981 his pavement
dwelling was demolished by the officers of Bombay Municipal; Corporation. He and his family
members were put into the bus for Salem. His family stayed back but he returned and got into the
pavement dwelling once again. In other batch of another writ petitions which was heard along
with the petitions of pavement dwellers there were 12 petitioners. The five of those petitioners
were the residents of Kamraj Nagar in Bombay. The next four petitioners were residing in
structures constructed off Tulsi Pipe Road Bombay. Petitioner no 10 was the People’s Union of
Civil Liberties, the 11th petitioner is the Committee for the Protection of Democratic Rights
while petitioner no 12th is a journalist.

2
AIR 1986 SC 180, 181,PARA 43

7
The residents of Kamraj Nagar and Tulsi Pipe Road were engaged in various small trade and had
been living in that area for around 10-15 years. When they heard the Chief Ministers
announcement they decided to file a writ petition in the High Court OF BOMBAY FOR AN
injunction restraining the officers of the State Government and the Bombay Municipal
Corporation from implementing the directive of the Chief Minister.

In this case Ms Olga Tellis was a journalist who filed a petition on the behalf of pavement and
slum dwellers.

The judgment in this case was given by the Hon’ble bench comprised of C.J., Y.V.
Chandrachud, J., A.V. Varadarajan, J., O.Chinnappa Reddy, J., S. Murtaza Fazal Ali and J., V.D.
Tulzapurkar.

8
 DISPUTE

The decision of the respondents i.e. the State Government of Maharashtra and the Bombay
Municipal Corporation to demolish the huts was challenged by the petitioners on the ground that
it was violative of article 19 and 21 of the Constitution of India. The petitioners also asked for
the declaration that the Bombay Municipal Act, 1888 are invalid as violating articles 14, 19 and
21 of the Constitution of India. The reliefs asked for in the two groups of writ petitions were that
the respondents should be directed to withdraw the decision to demolish the pavement dwellings
and the slum hutments and, where they were already demolished, to restore possession of the
sites to the former occupants.

In response to the petition filed the Government of Maharashtra and Bombay Municipal
Corporation filed a counter affidavit which basically said that the Government of Maharashtra
and Bombay Municipal Corporation neither proposed to deport any pavement dweller out of the
city of Bombay nor did in fact deport anyone. The counter affidavit further said that no person
has a legal right to encroach upon or to construct any structure on a foot-path or public street or
on any place over which the public has a right to way.

The petition which was filed in reply to the counter affidavit stated that even if squatters are
evicted, they come back to the city because there job opportunities are available. The
Government had not put to the best use the finances and resources available to it. The
employment schemes of the State Government were like drop in the ocean and no steps were
taken for increasing the job in the rural sector. The neglect of health ,education and transport and
communication drive the rural folk to the cities not only in the search of job but also in search of
basic amenities of life. It further said that the Court must determine in these petitions the content
of Right to Life, right to reside and settle in part of the territory of India which is guaranteed by
Article 19(1)(g), the competing claims of pavement dwellers on the one hand and of the
pedestrians on the other. One of the grievances of the petitioners against Bombay Municipal
Corporation Act, 1888 was that it was it was a century old piece of legislature passed in an era
when pavement dwellers and slum dwellers did not exist and the consciousness of the modern
notion of the welfare state was not present in the mind of the colonial legislatures.

It was further said by the petitioners that the State is under the obligation to provide to the
citizens the necessities of life and in appropriate cases the Court has the power to direct the State
to promote and protect the right to life.

The contention of Bombay Municipal Corporation was that since the pavement dwellers had
conceded in the High Court of Bombay that they did not claim any fundamental rights to put up
the huts on the pavements or public roads and since they had given an undertaking to the High
Court that they will not obstruct the demolition of the huts they are estopped from contending in

9
the Supreme Court that the huts constructed by them on the pavements cannot be demolished
because of their right to livelihood

ISSUES THAT WERE TO BE DECIDED BY THE COURT

(1) Was the order of eviction of pavement the infringement of their right to livelihood and in
turn the encroachment over their right guaranteed under Article 21 of the Constitution .
(2) That whether the impugned action of the State Government and the Bombay Municipal
Corporation violative of the provisions contained in the 19(1) (3), 19(1) (g) and Article
21 of the Constitution?
(3) Whether the procedure prescribed by Section 314 of the Bombay Municipal Corporation
Act, 1888 for the removal of the encroachments from the pavements arbitrary and
unreasonable?3

3
OLGA TELLIS AND ORS. VS. BOMBAY MUNICIPAL CORPORATION AND ORS. CASE COMMENT
HTTP://WWW.LEGALLYINDIA.COM/PRINCIPLES%20OF%20JEREMY%20BENTHAMAND
%20SUPREME%20COURT%20OF%20INDIA,%20OFOLGA%20TELLIS%20AND%20ORS.%20V.%20BOMBAY%20MUNIC
IPAL%20,%20SANDEEP%20PATHAK.HTML

10
 DECISION OF THE SUPREME COURT

(1)The Supreme Court said that just because the petitioners conceded in the High Court of
Bombay that they did not claim any fundamental rights to put up the pavements on public roads
they are not stopped from contending that the huts constructed by them on the pavements cannot
be demolished. The Court further said that it is not possible to accept this contention. It said that
the Constitution of India is the supreme authority in the country. There can be no estoppels
against the Constitution. It is the paramount law of the land. The lines said by honorable Chief
Justice were:

“There can be no estoppels against the Constitution. The Constitutional is not only the
paramount law of the land but it is the source and sustenance of all laws. Its provisions are
conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel
is based on the principle that consistency in word and action imparts certainty and honesty to
human affairs. There can also be no waiver of fundamental rights. No individual can barter
away the freedoms conferred upon him by the individual.”4

The Court further said:

“Fundamental rights are undoubtedly conferred by the Constitution upon individuals
which have to be asserted and enforced by them, if those rights are violated. But the high
purposes for which the Constitution seeks to achieve by conferment of fundamental rights
is not only to benefit individuals but to secure the larger interests of the community.”5
The court said that if a person says that he does not want his fundamental right to be
enforced, whether under the mistake of law or otherwise, cannot create a estoppel against
him in that or subsequent proceedings. Such a concession if imposed would defeat the
purpose of the Constitution.
Therefore the court decided that even if the petitioners said that they did not want to
enforce their fundamental right to construct hutments on pavements still they are entitled
to assert that any such action on the part of the public authorities will be in violation of
the fundamental rights.

(2)The Court said that the petitioner’s case which said that right to livelihood should
be included in right to life because if they are evicted from their slum and pavement
dwellings they will be deprived of their means of livelihood which would tantamount
to their deprivation of right to life and hence it would be unconstitutional stands true
and Article 21 does include right to livelihood.

4
AIR 1986 SC 180, PARA 1
5
AIR 1986 SC 180, 192, PARA 28

11
 “The sweep of right to life conferred by Article 21 is wide and far reaching. It does
not mean that merely that life cannot be extinguished or taken away, as for example, by
the imposition and execution of the death sentence, except according to the procedure
established by law. This is but one aspect of right to life. An equally important facet of
that right to life is the right to livelihood because no person can live without a means of
livelihood. If the right to livelihood is not treated as a part of the constitutional right to
life, the easiest way of depriving a person of his right to life would be to deprive him of
his means of livelihood to the point of abrogation.”6

(3)The Supreme Court further observed procedure prescribed by the law for depriving
the person of his fundamental right, must conform to the norm of just and fair play.
The action must be within the scope of the authority conferred by law and it must be
reasonable. The Court said the case of Olga Tellis they were of the opinion that the
procedure prescribed by the Section 314 of the Bombay Municipal Corporation
Act,1888 the removal of encroachments on the footpaths or pavements over which
the public has the right to passage or access cannot be regarded as unreasonable,
unfair, unjust. The Court further said that footpaths and pavements are public
properties which are intended to serve the convenience of the general public.
Therefore the court held that no person has the right to encroach any place reserved or
embarked for the public purpose and that the provision contained in Section 314 of
the Bombay Municipal Corporation Act is not unreasonable.

(4) Taking into consideration the special nature of the case, the court went on to
undertake the role of the commissioner. It ordered that the dwellers would be evicted
only one month after the end of the rainy season (date specified). The state was also
directed to give alternate accommodation to certain dwellers. This was not a
condition precedent for eviction and was merely to give effect to certain earlier
assurances by the government.

6
AIR 1986 SC 180, 193, PARA 32

12
 ANALYSIS OF THE JUDGEMENT DELIVERED BY THE SUPREME COURT

The judgment delivered by hon’ble Supreme Court in this case is very much appreciable. The
decision of the Supreme Court in this case was based on the humanistic approach of the judges
and the apex court stepped into the activist role. The honorable Supreme Court held that the slum
dwellers must get an alternative shelter if they are evicted from the pavements although the
eviction orders were held to be valid under Article 14 and 19 of the Constitution. In fact, the
right to life was again enlarged to engulf the right to livelihood as being a part of liberty of an
individual. The decision of the court also focused on the concept of the welfare state and reliance
though not expressly but impliedly was placed on the Directive Principles of the State Policies
under the constitution.

It is to be noted that the slum dwellers and pavement dwellers constituted almost half of the
population of the city of Bombay. It would not be unwise to say that the huge population of the
petitioners (slum dwellers and pavement dwellers) had compelled the court to pen down in their
favor despite of the existence of specific law for the eviction of such pavement dwellers and
slum dwellers (Bombay municipal corporation act, 1988 deals with the prohibition on housing
and depositions of various items on the pavements by the dwellers. According to chief justice
Y.V. Chandrachud, although the petitioners were using pavements and public properties
unauthorizedly, they in no were ‘criminal trespassers”. They just managed to find habitat in
filthy or marshy places.

In short we may say that this decision has paved the way for reformation of substantive law.

CONCLUSION

In this case the Supreme Court of India gave a landmark verdict which said that right to
livelihood is a part of right to life and emphasizing upon the close relationship between life and
livelihood the Court stated that which makes it alone makes it possible to live, leave aside what
makes life livable must be deemed to be an integral component of right to life.7

7
MP JAIN, INDIAN CONSTITUTIONAL LAW 1161(2014)

13
 BIBLIOGRAPHY

BOOKS:

M.P. JAIN –INDIAN CONSTITUTIONAL LAW

JOURNALS:

ALL INDIA REPORTER

ARTICLES:

CASE COMMENT –OLGA TELLIS AND ORS. VS. BOMBAY MUNICIPAL CORPORATION AND
ORS.(WWW.LEGALLYINDIA.COM)

A STEP TOWARDS HUMANITY-OLGA TELLIS CASE (WWW.DETECTIVEUPDATE.COM)

14